Jason Dzubow on Political Asylum

As the Syrian city of Aleppo falls under government control, the question of Syrian refugees has become even more urgent. Forces loyal to the government are summarily murdering civilians, and even the wounded cannot be evacuated due to government (and Russian) military action. Despite heartbreaking "goodbye messages" from civilians trapped in the conflict zone, I have little expectation that the world will do much to help. We have ignored genocides again and again, so why should we expect anything different here?Which is easier to explain: The absence of Christian refugees, or the absence of Christian charity?Accepting Syrian refugees into the United States has also been controversial. Donald Trump called them "a great Trojan Horse." I suppose the same could be said of the Jews fleeing Hitler on the ship St. Louis, which reached our shores but was refused permission to land. I am sure many of those men, women, and children were secret Bolsheviks plotting a Communist takeover. Lucky for us, they were rejected and returned to Europe, where over 250 of them perished in the Holocaust.
One gripe raised by those opposing the admission of Syrian refugees is that the refugees are disproportionately Muslim. In a recent concurring opinion, Judge Manion of the U.S. Court of Appeals for the Seventh Circuit, notes the mysterious absence of Christians from the pool of Syrian refugees arriving in the United States. SeeHeartland Alliance National Immigrant Justice Center v. DHS, 16-1840 (7th 2016). J. Manion writes:

I write separately for a… critical reason, which is [to express] my concern about the apparent lack of Syrian Christians as a part of immigrants from that country…. It is well-documented that refugees to the United States are not representative of that war-torn area of the world. Perhaps 10 percent of the population of Syria is Christian, and yet less than one-half of one percent of Syrian refugees admitted to the United States this year are Christian…. [Of] the nearly 11,000 refugees admitted by mid-September, only 56 were Christian. To date, there has not been a good explanation for this perplexing discrepancy.

Judge Manion's observation is supported by a recent report from the Pew Research Center, which found that in FY 2016:

[R]efugee status was given to 12,587 Syrians. Nearly all of them (99%) were Muslim and less than 1% were Christian. As a point of comparison, Pew Research Center estimated Syria’s religious composition to be 93% Muslim and 5% Christian in 2010.

The most accurate data I have found about Syrian refugees essentially lines up with the findings of Judge Manion and Pew: Of 12,541 Syrian refugees admitted into the U.S. in FY 2016, between 0.5 and 1% self-identified as Christian. It is a bit less clear how many Christians lived in Syria prior to the current war. Estimates range from 5.1% (Pew) to 10% (CIA). But no matter how you slice it, it's clear that the Syrian refugees entering the U.S. are not representative of the country's population--fewer Christians than expected are coming to our country as refugees. So what's going on here?
First, here is the conclusion that I don't accept--the one pushed by people opposed to Muslim immigration--that the Obama Administration is deliberately favoring Muslims over non-Muslims. I don't support this conclusion because, while a disproportionate majority of Syrian refugees are Muslim, the majority of refugees overall (from all countries), are not Muslim. In FY 2016, we admitted 38,901 Muslim refugees and 37,521 Christian refugees (out of a total of 84,995 refugees). In other words, in FY 2016, about 46% of refugees admitted to the U.S. were Muslim; 44% were Christian. (This was the first year of the Obama Administration where more Muslims than Christians were admitted as refugees).
A more plausible explanation for the absence of Syrian Christians was proposed by Jonathan Witt, an Evangelical writer and activist, and an Obama critic. Basically, he believes that Muslims are more likely than Christians to end up in refugee camps, and since refugees are generally selected for resettlement from the camps, Christians are disproportionately left out. This part sounds logical, but (to me at least) Mr. Witt takes his argument a bit too far:

As bad off as the Muslim refugees are, they aren’t without politically well-connected advocates in the Middle East. Many Muslim powerbrokers are happy to see Europe and America seeded with Muslim immigrants, and would surely condemn any U.S. action that appeared to prefer Christian over Muslim refugees, even if the effort were completely justified. By and large, they support Muslim immigration to the West and have little interest in seeing Christian refugees filling up any spaces that might have been filled by Muslim refugees.

The deck, in other words, is heavily stacked against the Christian refugees. The White House has been utterly feckless before the Muslim power structure in the Middle East that is doing the stacking, and has tried to sell that fecklessness to the American people as a bold stand for a religion-blind treatment of potential refugees —religion tests are un-American! It’s a smokescreen.

Here, he's lost me. This conspiracy-minded nonsense might be more convincing if there were some evidence for it (and remember, FY 2016 was the first year of the Obama Administration where we resettled more Muslim than Christian refugees). The prosaic arguments may be less interesting, but they have the vitue of being more likely.
I have a few of my own theories as well. For one thing--and maybe this ties in with the first part of Mr. Witt's thesis--Syrian Christians were somewhat better off than Syrian Muslims. If they have more resources, maybe they were able to avoid the refugee camps by leaving in a more orderly way and by finding (and paying for) alternative housing. Also, Syrian Christians are generally not being targeted by the Assad regime. Indeed, in view of the threats they face from extremists, Syrian Christians are more likely to support the government--not because they have much affection for Bashar Assad, but because the alternative is even worse.
So there very well may be a reasonable explanation for the lack of Christians among Syrian refugees resettling in the U.S. But because the Administration has not explained the anomaly, we are (as usual) left with an information void. And that void is being filled by speculation from fringe writers like Mr. Witt, but also by federal court judges, like Judge Manion. The solution should be obvious: Those involved in the refugee resettlement effort should tell us what's going on. This would help satisfy many critics and it will help protect the refugee program going forward.

As Donald Trump marches (goose steps?) toward the Republican nomination, there's been much hand wringing about the reasons for his rise. But if you listen to his supporters, there are a few themes that stand out.Mr. Trump's real estate empire and his political campaign were both built using immigrants.
One big issue is immigration. Last June, Mr. Trump called Mexican immigrants "rapists" and he has advocated banning all Muslims from entering the United States. Indeed, for a time, the only issue on the Trump campaign website was immigration (or maybe more accurately, anti-immigration).
There are many explanations for why Mr. Trump's xenophobia has resonated with his supporters: Fear of terrorists and criminals, economic and cultural concerns, racism and white supremacism. In a way, these are not new. For most of our country's history, U.S. immigration policies have reflected such sentiments, and at various times, all sorts of people have been blocked from entering the United States.
Here, however, I am interested in a different question: Whether the work of immigration advocates to help asylum seekers has contributed to the climate that produced Donald Trump.
Now wait just one gosh-darned second here, you say. Isn't this like blaming Jews for the Holocaust or blaming African Americans for the KKK? I think there's a difference. Allow me to explain--
Over the last 20 or so years, we've seen a marked expansion in the types of people who qualify for asylum. Some of this was Congressionally sanctioned--protecting victims of forced abortion, for example--but mostly, it was the result of creative lawyers pushing the boundaries of the law to protect their clients. Litigation has resulted in protection for victims of female genital mutilation, domestic violence, and forced marriage. To a more limited extent, victims of criminal gangs can also qualify for protection (sometimes), and many talented attorneys are working hard to improve asylum-case outcomes for such people, whose lives often are at risk.
Until about 2012 or 2013, the effort to broaden the categories of protection was somewhat theoretical. More people were eligible, but the number of asylum seekers actually applying remained relatively stable. But then things changed.
Between 2009 and 2012, increasing numbers of people--mostly Central American--began arriving at the Southern border to seek asylum (in FY 2009, there were about 5,500 such asylum seekers; in FY 2012, there were over 13,600). Since 2013, the numbers have skyrocketed. The most recent data shows that well over 6,000 people per month are requesting asylum at the border.
Most of the Central American applicants don't easily fit within the traditional protected categories of asylum. They are fleeing criminal gangs and domestic violence, but given the expanded range of people who can qualify for protection, they now have a realistic possibility of receiving asylum.
As the number of migrants from Central America was on the upswing, activists for the DREAM Act began seeking asylum in order to highlight their own plight (the DREAM Act, which has been stalled in Congress, would grant residency to certain undocumented immigrants who were brought here as children and who have lived their lives in the United States, but who currently have no lawful immigration status). The DREAM activists received a lot of attention in the media, and they demonstrated in a public way that asylum seekers could arrive at the Southern border, request protection, and be paroled into the country to pursue their cases.
It seems likely that these two events--changes in the law wrought by litigation and wide-spread publicity about asylum seekers gaining entry into the U.S. at the border--helped lead to the current spike in migration. This is not to say that people coming here for asylum are not also fleeing severe violence in their home countries--they are: Honduras, El Salvador, and Guatemala are three of the most dangerous places on Earth. But when you look at data about violent crime in those countries, there is little evidence correlating increased violence with increased migration. In other words, these countries had previously been very violent; something else seems to have spurred the current wave of migration. Quite possibly, that "something else" includes an improved legal climate and publicity about asylum.
Added to all this is the Obama Administration's decision to allow an additional 10,000 Syrian refugees to resettle in the U.S. at a time when fear of terrorism seems to be at an all-time high. This decision was not made in consultation with Congress; the President has the power to make such a decision and he did. A slew of Republicans weighed in against the move.
We now return to Donald Trump.
The idea that "liberal elites" are making decisions to encourage more immigration, and that ordinary Americans (i.e., Trump supporters) have no say in these decisions, fits neatly into Mr. Trump's narrative. This world view is not unrelated to reality. Indeed, as we've seen, recent changes related to asylum and refugee policies likely have brought more immigrants to the United States, and these changes were not reached by consensus, or even by a democratic process. Rather, they were achieved through litigation and civil disobedience, or via executive action--all methods of choice for the "liberal elite."
Should we--the liberal elite--have done things differently? I'm not sure, but I certainly won't apologize for the work of advocates and activists to represent our clients and to expand the law. That is our job and our duty. The President's decision to bring more Syrian refugees here was also the right choice, and--to me at least--represents a fairly tepid response to a massive crisis.
But obviously there is a problem. Many people feel left out of the decision-making process, and that is wrong. Immigration profoundly affects who we are as a country, and Americans--all Americans--have a right to participate in the policy debate on that topic. In taking action to protect our clients and save lives, we "elites" have, to a certain extent, trampled over the democratic process.
Perhaps this is all dust in the wind: People who support xenophobes like Mr. Trump aren't likely to have their minds changed by refugee sob stories or even by evidence that immigration actually helps the country. The sad state of our national discourse has prevented the type of rational policy debate that we need to move towards a broader consensus. Against mounting evidence, the optimist in me still believes that democracy works. I'd like to see a little more of it in our national conversation about immigration.

Just prior to the 2008 presidential election, the AP broke a story about Candidate Obama's Aunt Zeituni, a rejected asylum seeker who was living in the U.S. illegally. The source for the story was an unnamed "federal law enforcement official." At the time, it appeared that the leak was designed to harm Obama's chances for success in the election. As you may have noticed, it didn't.

After news of the leak broke, ICE initiated an investigate, and speculation about the source abounded."Outing" asylum seekers ain't classy, San Diego.
Fast forward to September 2013 when a heavily-redacted version of the report from the ICE Office of Professional Responsibility was finally made public. The report, which was actually completed in August 2010, states that ICE/OPR identified the leaker, who admitted what he did. However, it does not name names, nor does it indicate whether the leaker was punished. However, from a careful review of the report, some on-line research, and a bit of deduction, we can make a pretty good guess about who leaked Aunt Zeituni's name and immigration status to the press.
We begin with the initial AP article, which was written by Eileen Sullivan and Elliot Spagat. The article does not name the source of information, but it states that the Aunt's asylum application was denied in 2004 and she was ordered deported.
The ICE/OPR report indicates that the leaker was interviewed by "OPR/San Diego" in May and June 2010. The leaker admitted that he spoke with a male reporter (the names of the journalists are redacted, but it is most likely Elliot Spagat). The leaker stated that the disclosure was an "error in judgment." He also claimed that he had no "political motivations." Instead, he revealed the aunt's illegal status because it was "very interesting information" and he thought "the American public has a right to know that."
According to the report, the leaker had spoken with the reporter before and had a history of getting together with him socially. The leaker was first introduced to the reporter in 2007 by someone at the DHS Office of Public Affairs (which is the "primary point of contact for news media, organizations and the general public seeking information" about DHS). The leaker did two or three interviews with the reporter in the course of their relationship.
From this, we can glean some useful information about the source of the leak.
First, since the interview was conducted by OPR/San Diego, we can guess that the leaker is in San Diego. This conclusion is supported by the fact that the reporter (Mr. Spagat) is based in San Diego, and apparently the reporter and the leaker had met up socially a few times.
Second, the fact that the journalist had interviewed the leaker for two or three prior stories, and that the leaker was purposefully introduced to the journalist by the Office of Public Affairs points to a higher-ranking ICE officer. A lower-ranking employee would probably not be introduced to a journalist by the Office of Public Affairs or interviewed several times.
Since the leaker admitted to having been interviewed "two or three" times between 2007 (when he met the journalist) and October 31, 2008 (the date of the leak), we can look for names of ICE agents who appear in Mr. Spagat's articles during this period.Some on-line research revealed a few names, though one stood out because he appeared in several articles by Mr. Spagat in 2007 and 2008, but did not appear in any article after the election. While this person was the most likely suspect, I certainly did not have enough evidence to be sure.
I thought the best approach would be simply to ask the person. I found his email, and sent the following message:

I have been investigating the disclosure of President Obama’s aunt’s case prior to the 2008 election. My research has led me to believe that you informed AP reporter Elliot Spagat about the aunt’s case. I am writing to ask whether you would be willing to discuss this situation. Please let me know.
A few days later, I received this response from an attorney in Washington, DC who specializes in national security law:

My friend [redacted] contacted me about your e-mail inquiring about the disclosure of President Obama's aunt's case prior to the 2008 election. As I am sure you can imagine as a current ICE agent [redacted] would never be permitted to discuss a specific case without authorization from his agency. Respectfully, therefore, he can not respond to your e-mail.
Since this email came from a lawyer (and a pretty fancy lawyer at that) instead of DHS Public Affairs, and since it was not a denial, I suppose it provides some additional support for my theory about the leaker's identity, but it was still not enough. I responded as follows:

Thank you for writing... I understand his position. Given the evidence I currently have, it seems very likely to me that he is the person who leaked the information. That said, it is currently not my intention to name him in the blog post (even as a suspect), as I do not wish to implicate anyone unless I am 100% certain about my information. If anything changes in that regard, I will contact you before I publish anything.
And that is as far as I got. So I guess I will not be winning any prizes for investigative journalism. While I feel that the public has a right to know who violated Aunt Zeituni's confidentiality, I believe it would be wrong to accuse someone by name without stronger proof.
The OPR report indicates that "no prosecutorial actions" were taken in the case. I suppose that means that the leaker was not punished. He could have been: It is a violation of the law to violate an asylum seeker's confidentiality. See 8 C.F.R. §§ 208.6(c) & 1208.6(c). Government officials who violate this provision can be fired. See Lewis v. Dep’t of Justice, 34 Fed. Appx. 774 (Fed.Cir.2002).
To me, it is ironic that the leaker's confidentiality received more protection than that of the asylum seeker. However, the fact that ICE investigated the leak and took it seriously will, we can hope, deter others from revealing such confidences in the future.